Buck v. Folkers, 307

• Decision Date: 29 May 1973
• Docket Number: No. 307,307
• Citation: 304 A.2d 826,269 Md. 185
• Parties: Floyd J. BUCK, Indiv. and as personal representative of the Estate of Oliver G. Buck v. Lillian M. FOLKERS.
• Court: Maryland Court of Appeals

Page 185

269 Md. 185

304 A.2d 826

Floyd J. BUCK, Indiv. and as personal representative of the Estate of Oliver G. Buck v. Lillian M. FOLKERS.

No. 307.

Court of Appeals of Maryland.

May 29, 1973.

M. Wayne Munday, LaPlata (Mudd & Mudd, LaPlata, on the brief), for appellant.

Richard J. Clark, LaPlata, for appellee.

Argued before MURPHY, C. J., BARNES, McWILLIAMS and SMITH, JJ., and JAMES C. MORTON, Jr., Special Judge.

MURPHY, Chief Judge.

Article IV, § 22 of the Constitution of Maryland, relating to 'Circuit Courts' in the judicial circuits of Maryland, provides in pertinent part:

'Where any Term is held, or trial conducted by less than the whole number of said Circuit Judges, upon the decision or determination of any point, or question, by the Court, it shall be competent to the party, against whom the ruling or decision is made, upon motion, to have the point, or question reserved for the consideration of the three Judges of the Circuit, who shall constitute a court in banc for such purpose; and the motion for such reservation shall be entered of record, during the sitting, at which such decision may be made; and the several Circuit Courts shall regulate, by rules, the mode and manner of presenting such points, or questions to the Court in banc, and the decision of the said Court in banc shall be the effective decision in the premises, and conclusive, as against the party, at whose motion said points, or questions were reserved; but such decision in banc shall not preclude the right of Appeal, or writ of error to the adverse party, in those cases, civil or criminal, in which appeal, or writ of error to the Court of Appeals may be allowed by Law. . . .'

We have previously recognized that '(r)eview by a court in banc in the counties is a procedure long authorized, but rarely used.' State Roads Commission v. Smith, 224 Md. 537, 540, 168 A.2d 705, 706 (1961). ¹ Despite the relative paucity of our previous holdings concerning Article IV, § 22, certain principles are well established. The decision of the court en banc is conclusive, final, and non-appealable by the party who sought the en banc review (the moving party). Board of Medical Examiners v. Steward, 207 Md. 108, 113 A.2d 426 (1955), Shueey v. Stoner, 47 Md. 167 (1877). See also Tyler v. Board of Supervisors of Elections, 213 Md. 37, 131 A.2d 247 (1957). As to that party, a reservation of points or questions for consideration by the Court en banc is a substitute for an appeal to the Court of Appeals. Costigin v. Bond, 65 Md. 122, 3 A. 285 (1886).

Each of these decisions limited the non-appealability effect to 'the party, at whose motion said points, or questions were reserved.' Article IV, § 22. Under the express words of the Constitution, the nonmoving party in the en banc proceeding, may appeal to this Court, 'but such decision in banc shall not preclude the right of Appeal . . . to the adverse party, in those cases . . . in which appeal . . . to the Court of Appeals may be allowed by Law.' Id. Compare Costigin v. Bond, supra, in which we reversed the en banc decision at the instance of the adverse party, with Board of Medical Examiners v. Steward, supra, where we dismissed the appeal brought by the moving party in the en banc proceedings. Obviously, in the limited area of permissible appeal to this Court, the parties must comply with the Maryland Rules of Procedure governing such appeals.

A review of the record in the instant case plainly requires us to grant the appellee's motion to dismiss the appeal. The record discloses that appellee, Lillian M. Folkers (Folkers) filed her petition for...